This letter is in response to Utah's request for the interim flexibility offered by the U.S. Department of Education (ED) regarding calculating adequate yearly progress (AYP) for the 2004-05 school year in schools and districts that do not make AYP solely on the basis of their students with disabilities subgroup.

Following the Secretary's April announcement at Mount Vernon of a more flexible, commonsense approach to implementing the No Child Left Behind Act (NCLB), she expressed her willingness to provide States this interim flexibility while ED promulgates a regulation to permit States to develop modified achievement standards and aligned assessments for some students with disabilities. To take advantage of this interim flexibility, however, a State must demonstrate adherence to core NCLB principles and improved academic achievement, particularly with respect to students with disabilities.

ED guidance that was released on May 10, 2005 (www.ed.gov/policy/elsec/guid/raising/disab-acctplan.html) explains that States must meet certain guidelines in order to make adjustments to their 2004-05 AYP determinations for students with disabilities. The guidelines establish, among other things, that participation rates on the statewide assessments for students with disabilities must be at or above 95%. According to data submitted by Utah on June 1, 2005, the 2003-2004 participation rates for students with disabilities were as follows: 92% of students with disabilities took the language arts assessment in grades 3-8, 80% took the 10th grade language arts assessment, and 91% participated in the mathematics assessment in grades 3-8 on the mathematics assessment. Further, Utah noted it was unable to calculate the participation rate for students with disabilities on the high school mathematics exam. A second guideline was that States could not have an unresolved condition related to IDEA grants, if such a condition could not be resolved by July 1, 2005. Utah has an outstanding special condition since it has not reported the results of students with disabilities taking the alternate assessment in science. Given the participation rates and Utah’s unresolved special condition, we are unable to grant Utah interim flexibility within the guidelines.
Kerri Briggs (kerri.briggs@ed.gov) or Carlos Martinez (carlos.martinez@ed.gov) of my staff are available to discuss this decision with you in greater detail and can answer any questions you might have about this issue.